South Dakota Government Blog by Bob Mercer

Monthly Archives: September 2016

The state Department of Transportation seeks to prohibit wireless systems from placing infrastructure in the right of way along South Dakota’s interstate and non-interstate highways. The state Transportation Commission plans a public hearing Oct. 27 at 9:30 a.m. CT at the Becker-Hansen building in Pierre. The rules information is here and also here. DOT officials say they don’t have enough information about this technology yet and want more time to consider the matter.

Quite often in sports, plays happen faster than the eye and the mind can precisely comprehend. Instant replay, using video, is changing major league baseball. The Minnesota Twins won last night because of instant replay. With two outs in the bottom of the ninth inning at Kansas City, Twins relief pitcher Brandon Kintzler picked off the Kansas City runner at first base; Kennys Vargas put on the tag. The runner was called safe but the Twins challenged and won, not only getting the out but the win 7-6. Vargas also hit a home run, his 10th of the season. He is 26 but he might not be back with the Twins next season. Vargas is among the four or five players trying to be the team’s regular first baseman. Miguel Sano would seem to need a full-time slot for his bat. Joe Mauer must play somewhere for the rest of his contract. Trevor Plouffe is showing wear. The Byung Ho Park experiment seems, mercifully, done. Maybe the Boston Red Sox could take Kennys Vargas to replace the retiring David Ortiz. Heck, it worked out well for the Red Sox the last time they signed a young slugging first baseman the Twins gave up on.

There are seven major league baseball teams as of this fine Thursday morning that have lost 90 games or more this season. Only one has lost more than 100 games. The Minnesota Twins stand at 56 wins and 102 defeats after the 5-2 loss in Kansas City on Wednesday night. It takes a real mess to lose twice as many games as you win. The Twins won’t quite reach that depth because the season ends Sunday. To lose 100 games is just bad.

I started the 2016 season believing the Twins were a .500 team after their bounce-back a year ago under new manager Paul Molitor. Friends who have sat close to the Twins dugout at Target Field this season have nothing, and I mean nothing, good to say about him as a manager. He’s silent batter after batter, they say. I didn’t make it to a game this year. The reason wasn’t a shortage of tickets available. The schedule didn’t work out well for me to make the trip from Pierre, and frankly I found no enthusiasm among others to go.

Paul Molitor will be back as manager for the 2017 season, we’re told. I liked Molitor as a player when he was young with Milwaukee. He played from 1978 through 1998 and posted statistics strong enough to earn a Hall of Fame induction in 2004. He’s now 60 years old. I hope he doesn’t think like this, but I suspect I, at age 58, would be wondering, what am I still doing here? The Twins weren’t as good this season as they were in 2015. I don’t blame Molitor, while a lot of people do.

How weak is this lineup? Put it like this: Paul Molitor in his final season, which was with the Twins in 1998, batted .281 with 75 runs scored and 69 runs batted in, while playing 126 games and making 559 plate appearances. He stole nine bases, hit 29 doubles, tripled five times and found four home runs left in his soul. Those numbers would be strong enough this season to be the second-best batter for average, tied for most triples, second in doubles, second in runs and second in RBI.

If only the Twins could infect their lineup with Paul Molitor’s baseball DNA. I still look in on them as I’m flipping through the TV channels or catch part of a game on the radio in my truck. But Sunday won’t be a sad day. And maybe on Monday morning I say a little prayer for a guy who was a real ballplayer.

State government in South Dakota takes a range of approaches to public involvement in making decisions.

The Public Utilities Commission is perhaps the most inclusive, with a person on staff assigned specifically to receive complaints, and allowing anyone with a direct interest to intervene in cases, and going so far as hiring outside experts for some of its permitting cases and, of late, requiring projects to pay for compliance monitors.

At the other extreme is the state’s elections office. Secretary of State Shantel Krebs is trying to address the lack of clarity regarding enforcement of state election laws. As we’ve seen in recent years, no one seems certain how, or even whether, Krebs or state Attorney General Marty Jackley is supposed to handle allegations of election law violations. Nothing was resolved this year on the complaint from Janette McIntyre against Rep. Jeff Partridge in their Republican primary battle for the nomination to a Rapid City seat in the state Senate. Two years ago, the attorney general didn’t prosecute Annette Bosworth regarding fraud on petition signatures until after the Republican primary for the U.S. Senate nomination. Nor is a campaign finance report ever audited.

Then there are the permitting and funding boards associated with the state Deparment of Environment and Natural Resources. At times the agency faces difficulties recruiting new staff for a variety of reasons. The staff members often are in a squeeze, too: Assigned to enforce rules and laws to protect South Dakota’s environment while at the same time trying to stand aside in favor of economic development. DENR doesn’t have a public advocate’s office.

All of this comes to mind this week for several reasons. One is the recent death of Dick Fort from Lead. For decades he questioned the Black Hills mining permits and regulations. The second is a hearing that began Tuesday. DENR’s feedlot permitting program is proposing updates to its general permit for concentrated animal feeding operations, known as CAFOs or more generally as feedlots.

Sitting in judgment is Steve Pirner, who is secretary of environment and natural resources in the Daugaard administration. His DENR employees are offering the revisions. Questioning the proposals is a small group of people and Dakota Rural Action, the only citizens organization left in South Dakota that routinely takes the side of protecting the environment.

Watching lawyer Kelsea Sutton grind through cross-examination of two DENR staff members Tuesday was remindful of how many others, whether lawyers or not, had served in that same role of challenger since the 1980s and the boom of surface mining for gold in the Black Hills. Dick Fort, Gary Heckenlaible, Donald Pay, lawyer Patrick Duffy, Curt Hohn, Paul Blackburn, Paul Seamans and many others tried to stand up for what they thought was right.

If they ever prevailed, the victory has slipped from memory. There was a warning about acid mine drainage that unfortunately came true at the Brohm gold mining site. But when the mining proved the warning right, the environmental-protection side in turn was able to block the company’s plan to take neutralizing rock from U.S. Forest Service land adjacent to the mine. The company threw up its hands in bankruptcy. Now Brohm is a federal Superfund site that requires monitoring for many years to come.

The PUC meanwhile has a one-year limit on the time it will take to approve or reject a permit. That leaves a sense of preordained result. The one-year limit also doesn’t provide enough time, we’ve learned, to conduct an environmental assessment or impact statement, or to always get federal reviews adequately accomplished.

As Kelsea Sutton makes Dakota Rural Action’s case today on the feedlot permit, one of her lines of questioning will try to continue to show DENR was biased for the livestock and poultry producers. That bias is natural. The government should be asking the people being regulated for their opinions and suggestions. What’s also become clear is DENR didn’t specifically seek out citizen groups such as DRA. But DENR’s processes are open to citizens and in this case sent out hundreds of notices to interested parties. Relatively few stepped forward.

Why? It takes money and expertise for citizens to challenge permits. DENR staff members involved in permitting are scientists and engineers, but they typically aren’t researchers. There are times they issue recommendations without having visited a site, such as for water-rights permits. They will weigh facts. But those facts typically need to be brought to them. Some people from Onida recently experienced that situation when they challenged an air-quality permit for a new ethanol plant. Based on other information they had located, they wanted DENR to do research in Onida. DENR didn’t see that as its role. DENR suggested the challengers could conduct testing at their properties going forward.

In the instance of the livestock feeding permit, the goal is to protect public waters whether on the surface or underground from manure pollution. Less than 25 years ago, there wasn’t such protection in state or federal laws and regulations. We’re still finding our way.

The state Board of Minerals and Environment, which issued the Brohm mining permit and the Wasta oil well permit, now has some new members and they are asking questions more often.

The PUC is doing much more to protect landowners who are subject to utilities and pipelines using eminent domain to force access across their properties.

The challenges posed each time a permit has been sought have ever so slowly helped make a difference. It’s difficult to turn a government agency. What might help make a bigger difference during the final two years of the Daugaard administration is a public review of the processes used for permitting, and deciding whether the steps are too steep for business applicants and too steep for citizen challengers, and ultimately whether the land, air and water are rightly protected.

The Republican-dominated Legislature, during the 1995 return of Republican Bill Janklow as governor, approved a 4 percent gross receipts tax on medical services and then, on second thought, struck it from taking effect. The Legislature even tried to create a special referendum but that line was dropped after Janklow received an advisory opinion from the South Dakota Supreme Court. The court’s opinion is here. The idea of a medical tax hasn’t died, however. The Legislature’s interim committee studying payment methodologies for Medicaid providers is set to discuss health care provider taxes today during its afternoon work. You can see the agenda and find the live-audio link here.

Meanwhile Gov. Dennis Daugaard remains determined to pursue Medicaid expansion for the working poor in South Dakota. He is waiting to see the result of the Nov. 8 presidential election — a victory by Donald Trump would remove the veto barrier that has prevented the Republican majorities in Congress from repealing the Affordable Care Act, aka Obamacare, of which Medicaid expansion is a part — and the governor is also waiting to see how legislative elections come out. The governor convened a meeting Monday of representatives for major health-care organizations that favor Medicaid expansion.

It is also significant that on Monday the governor appointed former Rep. David Lust, R-Rapid City, to fill the seat of the late Rep. Dan Dryden, R-Rapid City. Lust left the Legislature after his term ended in 2014. He was up against the constitutional limit that prohibits seeking a fifth consecutive term in the same chamber. Rather than run for the Senate, he went back to practicing law 12 months of the year, and he added several state appointments to his portfolio. While he was a legislator, Lust rose to the role of House majority leader and held the post for four years. The combination of Lust in the top seat in the back row of the House, and Rep. Brian Gosch, R-Rapid City, in the role of speaker during the 2013-2014 term wasn’t frictionless by any means. Gosch became House majority leader for the 2015-2016 term. Now term limits have caught up with Gosch, while Lust is about to return to a House Republican caucus that doesn’t have an obvious first choice for its new floor leader.

The significance of the governor choosing Rep. Lust, and of the governor making clear he would appoint Lust to the Dryden seat for the full 2017-2018 term as well — Dryden’s name remains on the ballot because his death came after the final deadline for replacement candidates, so if Dryden wins Nov. 8, Lust would become the replacement under the governor’s plan — is that Lust was an early proponent behind the scenes for Medicaid expansion by the Legislature. It seemed unlikely that Rep. Gosch would ever vote in favor of Medicaid expansion, if the governor had pushed for a vote this year. It’s no guarantee that Rep. Lust would vote in the end for Medicaid expansion. But there is a sense in the Capitol that Medicaid expansion could be the final big issue on the governor’s agenda in 2017 as he starts his final two years in the office. Bringing David Lust back to the House seems like an important advantage for the governor.

FOOTNOTE: The Medicaid expansion under consideration in 2013 and 2014 dealt with a different subset of people than the current expansion being considered. Here is a link to that final report.

Every election is rigged, if you think about the meaning of rigged. There are criteria to be met. There are deadlines to be met. There are requirements to get a candidate’s name on the ballots. To rig is to prepare, whether for sailing or more generally for operation. Rigging doesn’t mean a preordained result. So when Jill Stein, the Green Party’s nominee for U.S. president, continues to press her claim that the 2016 election is rigged, she is absolutely right, even though she evidently doesn’t understand what it means to rig. She failed to make the South Dakota ballot because she didn’t meet the rules. Now she’s up to another stunt today, holding her own “debate” before the real debate tonight between the two major-party candidates for president.

Neither Stein nor Libertarian nominee Gary Johnson reached the 15 percent threshold of polling support that would have put them on the main stage tonight. Together the two are somewhere in the 11 to 12 percent neighborhood — Stein at 3-plus percent and Johnson at 8-plus percent — and that’s not evidence of rigging either. Stein hasn’t won an election for a state or a federal office. Johnson was elected twice as governor of New Mexico. His running mate, William Weld, was elected as governor of Massachusetts. Both were Republicans while in office. That certainly is a more significant foundation that Stein can claim.

Johnson’s name appears on the South Dakota ballot. Absentee voting began Friday in South Dakota. The election here certainly wasn’t rigged against him. He met the rules.

What is important about the 11 to 12 percent that Johnson and Stein together pull in the polling is this: One in nine likely U.S. voters is willing this year to choose someone, maybe anyone, other than Republican Donald Trump or Democrat Hillary Clinton. Think about your circle of friends and acquaintances. Can you pick one in every nine who has said he or she isn’t voting? Probably. Can you pick out one in every nine who has said he or she is voting for Johnson or Stein? Depending where you live, it’s certainly possible. Johnson, as the 2012 Libertarian nominee, received 0.99 percent of the national vote, more than any other small-party candidate.

If anything, Stein’s failure to get on the ballots in every state this year rigs the election against those registered voters who want to pick someone other than Clinton or Trump. It takes real work to be a candidate for election to any office. The first requirement is to do that work. Stein didn’t pass that basic test. Like them or not, at least Trump and Clinton and Johnson have.

Proof that it’s not overly difficult to run for president in South Dakota is the fourth candidate on our state’s ballots this year. It’s Darrell Castle, the Constitution Party’s nominee from Tennessee. He served as a U.S. Marine, the only one of the five better-known nominees to have armed-forces experience.

I hope that real authors who aren’t newspaper reporters aren’t upset that I am giving books away. Candidly, these books are my treasures that must be freed. I don’t own any books that I wish in hindsight I hadn’t purchased or received as gifts. (Those books that I discovered the morning-after that I shouldn’t have purchased have already moved along through the years to the AAUW sales.) So, whether or not you decide to email me at Bobmercer2014@gmail.com with a request for any of titles in this second batch of books I’m offering for free, please consider this almost as a list of recommendations. This second batch covers musicians and artists and editors and Nobel international literati. Just typing each title brings to mind the noun pang. (It’s not a verb, so I really shouldn’t write that it pangs me when I see it used that way.) Regarding the Nobel recipients, I decided about a decade ago to try to read at least one work by as many of them as possible. Their writings opened my mind in many directions.

Art – Portrait of An Artist, A Biography of Georgia O’Keefe, by Laurie Lisle; the Trip, by Deborah Davis (she retraces a cross-country drive by Andy Warhol).

Editors – George, Being George, edited by Nelson W. Aldrich, Jr. (an oral history of George Plimpton, much of it regarding The Paris Review); and Max Perkins, a biography of the editor for Hemingway, Fitzgerald, Wolfe and others, by A. Scott Berg.

Nobel international literature – The Labyrinth of Solitude by Octavio Paz (1990 recipient); Detective Story, and The Pathseeker by Imre Kertesz (2002 recipient); Snow, The Museum of Innocence, The Black Book by Orhan Pamuk (2006 recipient); Palace Walk, Cairo Modern, The Thief and The Dogs, Karnak Café and a three-story collection containing Respective Sir, Wedding Song and The Search, by Nagiub Mahfourz (1988 recipient); The Grapes of Wrath by John Steinbeck (1962 recipient); The Stranger by Albert Camus (1957 recipient); To Have and Have Not by Ernest Hemingway (1954 recipient); and The Sound and The Fury by William Faulkner (1949 recipient).

Some other good international writing: The Curtain by Milan Kundera; There Are Things I Want You To Know About Stieg Larsson and Me by Eva Gabrielson; Scenes of Parisian Life: Fourth Volume by Honore de Balzac; and The Ambassadors, and Washington Square by Henry James.

I received two requests from Yankton and Clear Lake regarding the earlier list of sports books (and none from the chess books list, but rumor is they’re going to find a good home in Rapid City). Same arrangement applies to this second batch: Send me an email telling me what title you want and I’ll mail it to you for free. All I ask in return is that you buy a book at the next AAUW or other used-book sale, or make a small donation to a local charity of your choice (why not the public library?).

First National Bank in Sioux Falls has been the trustee and loan servicing agent since 1989 for the state Board of Water and Natural Resources, which handles tens of millions of dollars annually in grants and loans for community and rural water systems. On Sept. 2 the bank sent a letter of resignation. Now the scramble starts to find a financial institution willing to perform the roles. As part of the transition, the new institution would need to accept the many records that have been kept by First National Bank.

According to Jim Feeney who oversees the financing programs at the state Department of Environment and Natural Resources, the bank isn’t simply walking away. He said First National Bank will continue to serve as trustee and loan-servicing agent until the duties can be turned over to a new firm. The contract with the new institution will be through Dec. 31, 2019. The board’s chairman, Brad Johnson of Watertown, appointed Gene Jones Jr. of Sioux Falls and Todd Bernhard of Fort Pierre to join him on a subcommittee to work on the new contract proposal. Jones is the board’s vice-chairman and Bernhard is the board’s secretary.

“This will be a challenging process for the staff but we’ve seen you perform miracles before,” Johnson remarked. “It will be a heavy lift,” Feeney said.

If you attend even some of the meetings of the state Board of Education and the state Board of Regents, whose respective responsibilities are the four locally-managed public technical institutes and the six state universities (and three university centers), you know the officials in charge of those 13 campuses are trying mightily to attract more students and to generate more graduates ready for South Dakota’s under-filled workforce. But there are some situations where the Legislature and the governor could give more help.

The Build Dakota scholarship program, which Gov. Dennis Daugaard pioneered with private help, has funding for five years. Basically it offers a scholarship if a student agrees to take specific fields where workers are needed and if the student agrees to work in South Dakota after graduation. The applications for those nearly 300 scholarships each of the past two selection rounds were in the 1,100 range both times. That’s 1,600 students who could have been steered into those fields where help is needed.

Another spot where more help would make a difference is the university center program. The centers attempted to take four-year degrees into settings of Sioux Falls, Rapid City and Pierre where state universities weren’t filling the local needs. The Legislature, because of political reasons, required tuition at the university centers to be much higher than at the six traditional university campuses. (Legislators from the communities with state or private universities — Yankton, Mitchell, Aberdeen, Brookings, Vermillion, Spearfish and Madison — plus their alumni wielded real clout in this instance.)

What we now have are three university centers that seem headed toward academic ghost towns, because the local populations who might be the natural users of the centers find the prices hard to afford and the schedules difficult to fit with their family responsibilities and current jobs. The regents are transitioning to more two-year programs at the centers, which is a good first step, and adjusting prices somewhat.

But until the Legislature provides enough funding to subsidize tuition at the centers and brings price into line with the traditional campuses, the centers won’t be able to fulfill their possibilities. It could be argued that, in light of the worker shortages in so many communities of South Dakota, the tuition rates for non-traditional students — those already past the four or five years after high school graduation — should be subsidized at below-normal prices as a way to help employers and prospective students who want to get a degree on their resumes.

Another spot where the regents could use help from the Legislature is funding for more Native American students. The university system is trying hard to recruit, but it’s a long drive from Sisseton or Pine Ridge or Rosebud or Cheyenne River or Standing Rock or Lower Brule or Crow Creek. There are tribal colleges in some areas of Indian country, but there isn’t any substantial state funding to help those students.

South Dakota’s untapped workforce lives in Indian country. Businesses hesitate about investing on reservations because of uncertainty about treatment in tribal court systems. We have tribal gambling compacts in South Dakota that align jurisdiction on criminal matters depending on whether the person is a tribal member. A similar arrangement perhaps could be established for business development through state-tribal compacts.

Spreading some technical institutes through Indian country could make a big difference too. Establishing a legislative workforce development committee and a governor-level task force of tribal and state people would offer continuity for years to come.

POSTSCRIPT: Tony Venhuizen, the governor’s chief of staff, sent this note in regard to a point in the above post. “Build Dakota has $25 million to fund 300 scholarships a year for five years. At the end of that five years, there will also be a $25 million endowment that will fund approximately 60 scholarships a year going forward. So when you say it “has funding for five years,” that is true at the current level, but it will go forward after that at a reduced level.”